2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-14-2004

USA v. Moore

Precedential or Non-Precedential: Precedential

Docket No. 03-2698

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"USA v. Moore" (2004). 2004 Decisions. Paper 438.

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-2698

 

UNITED STATES OF AMERICA

v.

DARRICK MOORE,

 Appellant

 

APPEAL FROM THE UNITED

STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

D.C. Crim. No. 02-cr-00097

District Judge: The Honorable Yvette

Kane

 

Argued: February 24, 2004

 

Before: RENDELL, BARRY, and

ROSENN, Circuit Judges

 

(Opinion Filed: July 14, 2004)

 

James J. West, Esq. (Argued)

West Long

105 North Front Street

Suite 205

Harrisburg, PA 17101

Attorney for Appellant

James T. Clancy, Esq. (Argued)

Office of the United States Attorney

Federal Building

228 Walnut Street

P.O. Box 11754

Harrisburg, PA 17108

Attorney for Appellee

 

OPINION OF THE COURT

 

BARRY, Circuit Judge

We begin with the closing argument

of the prosecutor:

[S]ta ndin g her e

knowing what dat e

[September 10, 2002] today

is I am very, very reluctant

to use the term I’m going to

use, but, frankly, I think this

defendant warrants that

term, and that term is

terrorist.

There are many

different kinds of terrorists.

We all know too well the

kinds of terrorists that

caused the attacks of the

anniversary so-to-speak we

will mark tomorrow. But

there are very different

kinds of terrorists, and I
2

think this defendant is one

of them.

As you heard the

evidence today, I think this

evidence can show you that

he inflicted terror upon

Belinda Newcomer and her

family, upon Brittany

New comer and upo n

Belinda’s son Brandon

Newcomer.

You heard testimony

that he was forcing kids to

do drug transactions for

him. What kind of person

does that?

173a.

The kind of person that does that,

is, of course, a very bad person. Indeed,

the government’s hyperbolic closing

argument crowned its trial strategy of

pillorying defendant Darrick Moore before

the jury. This fact, and fact it be, is best

exemplified by the prosecutor’s direct

examination of the government’s key

witness, Belinda Newcomer, through

whom he elicited the many ways in which

Moore was physically violent, seriously

injuring both her and her son. It was also

seen when the prosecutor, on redirect

examination of Belinda’s thirteen year old

daughter, Brittany, elicited testimony that

Moore punched, kicked and choked her

after she refused to sell drugs for him.

Given all of this, could anyone disagree

with the government that Moore was a bad

man if not some species of “terrorist”?

Surely the jury did not; it returned a guilty

verdict after only twenty-eight minutes of

deliberations. 

Before placing our stamp of

approval on the jury’s verdict, however,

we must consider the issues that Moore

raises on appeal, and that the government,

defense counsel,1and the District Court

simply ignored: Moore was not charged

with forcing children or anyone else to

deal drugs. Neither was he charged with

assault. Nor drug possession. Nor child

abuse. Nor terrorism. In fact, Moore was

not on trial for anything he may have done

to Belinda or her family. 

Moore was on trial for arson, in

violation of 18 U.S.C. § 844(i), and for

possession of a firearm by a previously

convicted felon, in violation of 18 U.S.C.

§§ 922(g) and 924(a)(2). Any observer with

even an elemental understanding of the

Federal Rules of Evidence should have

wondered how the wide-ranging testimony

about drugs, domestic violence, and child

abuse was appropriate in an arson and gun

possession trial. Moreover, what

justification could the prosecutor have had

for raising the specter of September 11th

and calling Moore a terrorist? We cannot

conceive of any. We will reverse the

judgment and sentence, and grant a new

trial. 

I. Background

 

1Different counsel was appointed to

represent Moore on this appeal, and has

ably done so. 
3

On Christmas Eve of 2001, a fire

occurred at an apartment building located

at 455 North Beaver Street in York,

Pennsylvania, and a boy was injured. In

mid-February of 2002, Belinda Newcomer,

Moore’s ex-girlfriend, came forward to

identify Moore as the person responsible

for the fire. In April, in the U.S. District

Court for the Middle District of

Pennsylvania, Moore was charged in a two

count indictment with arson resulting in

personal injury and with possession of a

firearm by a convicted felon. 

Brittany Newcomer, Belinda’s

daughter, was the first of four witnesses to

testify for the government. On direct

examination, Brittany testified that she saw

Moore with a gun when he lived with her

mother. She further testified that Moore

warned her not to tell her mother about the

gun or he would hurt her. On crossexamination, defense counsel asked

Brittany why she had waited so long

before telling her mother about the gun.

Brittany replied that she feared being hurt

by Moore. On re-direct, the prosecutor

asked Brittany if Moore had hurt her in the

past. Brittany responded that he had hurt

her because she had refused to sell drugs

for him. Presumably on the ground that

Moore had now been called a drug dealer

who used children to sell his drugs,

defense counsel objected: “[t]his is far

beyond cross-examination, and it’s beyond

the scope of this trial.” The prosecutor

countered only that the defense had made

an issue of why Brittany had waited so

long to tell her mother about the gun. The

District Court agreed, and overruled the

objection. The prosecutor then proceeded

to elicit from Brittany that Moore had

punched, kicked, and choked her when she

refused to sell drugs. On re-cross, Brittany

offered that Moore not only wanted her to

sell drugs for him, but also wanted her

mother and brother to do so. 

Belinda Newcomer took the stand

after her daughter. Belinda began her

testimony by describing the nature of her

relationship with Moore. She testified that

he was in anger management classes; that

her relationship with him was “very

violent”; that he was a “very hostile man”;

that he was a habitual drug user; that he

threw her down a flight of stairs with the

result that she was hospitalized in critical

condition; that he repeatedly punched her

in the face; that he severely beat her son,

cracking three of his ribs and leaving scars

on his face and neck; that her son was

taken by Child Services for fear that he

would again be hurt by Moore; and that

she feared for her life and the lives of her

children. Defense counsel at no point

objected and the District Court did not

intervene. 

Having set the scene with her

description of Moore’s violent behavior,

Belinda turned to the events which took

place on Christmas Eve. She testified that

Moore awoke her (the two were at that

time living together) and asked her to drive

him to a location he did not then disclose.

She agreed to do so. Moore first directed

Belinda to a gas station, where he filled a

red plastic gas can with fuel, and they then

drove to 455 North Beaver Street. Moore
4

got out of the car with the gas can,

instructed Belinda to stay in the car, and

disappeared behind the building. Minutes

later, he came running back, smelling of

gasoline, and instructed her to drive them

away. As they drove off, Moore remarked

to Belinda that he had finally gotten even

with “someone he had been angry at and

that no one is going to ‘f’ with ‘D.’” 

Two other witnesses took the stand.

Melissa Strunk Layer, who was then

incarcerated on drug charges, testified that

she knew Moore from dealing in crack

cocaine. She had not seen Moore since

having a disagreement with him about the

purchase of $20 of crack. Presumably, it

was this dispute that motivated the arson:

on Christmas Eve of 2001, Melissa Strunk

Layer lived at 455 Beaver St., the location

of the fire. 

Finally, York City Police Officer

Troy Cromer offered into evidence a gun

retrieved by police from Moore’s former

place of employment, a gun that fit the

description given by Belinda and Brittany

of the gun to have been in Moore’s

possession. Officer Cromer–qualified at

trial as an expert investigator of the origins

and causes of fire–also testified that the

fire was set intentionally, and that a red

plastic gas can was recovered from the

scene.

The government rested its case, and

Moore followed suit without calling any

witnesses. Closing arguments were then

presented to the jury. The prosecutor

launched into his closing argument by

calling Moore a terrorist. Again, no

objection was made by defense counsel. 

The Court then instructed the jury,

and the verdict was returned in twentyeight minutes. 

II. Discussion

Moore urges us to overturn his

conviction on two grounds.2 First, he

contends that the District Court improperly

admitted the testimony of Brittany and

Belinda Newcomer concerning his alleged

prior bad acts, in violation of Federal Rule

of Evidence 404(b).3 Second, he contends

 

2Moore filed a timely notice of appeal. 

We have jurisdiction under 28 U.S.C. §

1291 and 18 U.S.C. § 3742. 

 

3

Federal Rule of Evidence 404(b) provides:

Other crimes, wrongs, or

acts. Evidence of other

crimes, wrongs, or acts is

not admissible to prove the

character of a person in

order to show action in

conformity therewith. It

m ay, h owev er, b e

a dmissible for other

purposes, such as proof of

motive, opportunity, intent,

p r epa rati on, plan ,

knowledge, identity, or

absence of mistake or

accident, provided that upon

(continued...)
5

that the prosecutor’s closing argument

unfairly prejudiced him. 

A. Standard of Review

The Federal Rules of Evidence

require a timely and specific objection to

evidence erroneously admitted. Fed. R.

Evid. 103(a)(1). Where an objection is

properly made, we review a district court’s

ruling for abuse of discretion. United

States v. Givan, 320 F.3d 452, 463 (3d Cir.

2003). Where, however, a party fails to

object in a timely fashion or fails to make

a specific objection, our review is for plain

error only. United States v. Boone, 279

F.3d 163, 188 (3d Cir. 2002). See also

United States v. Sandini, 803 F.2d 123,

126 (3d Cir. 1986) (holding that failure to

object with specificity does not preserve a

Rule 404(b) issue for appeal). It is wellsettled that to establish plain error, a

defendant must show “(1) error, (2) that is

plain, and (3) that affects substantial

rights. If all three conditions are met, an

appellate court may then exercise its

discretion to notice a forfeited error, but

only if (4) the error seriously affects the

fairness, integrity, or public reputation of

judicial proceedings.” Johnson v. United

States, 520 U.S. 461, 467 (1997) (citations

and quotation marks omitted). See also

United States v. Plotts, 359 F.3d 247, 249

(3d Cir. 2004) (“Under plain error review,

we may grant relief if (1) the District Court

committed an error, (2) it was plain, and

(3) it affected substantial rights of the

defendant.”) (citation and quotation marks

omitted). 

Similarly, a failure to sustain an

objection to a prosecutor’s closing

argument is typically reviewed for abuse

of discretion. United States v. MolinaGuevera, 96 F.3d 698, 703 (3d Cir. 1996).

But, again, defense counsel never said a

word when his client was likened to one of

the September 11th terrorists, nor did the

District Court. And so, again, the standard

of review is plain error. United States v.

Tiller, 302 F.3d 98, 105 (3d Cir. 2002).

B. Plain Error Pervaded the Trial

Inadmissible evidence and highly

inflammatory statements came rolling in

unimpeded at Moore’s trial, without any

hesitation by the prosecutor, complaint by

defense counsel, or correction by the

District Court. Indeed, at only one point

when irrelevant but enormously prejudicial

evidence and wholly inappropriate

statements came before the jury did

 

3

(...continued)

request by the accused, the

prosecution in a criminal

c a s e shall prov i d e

reasonable notice in advance

of trial, or during trial if the

court excuses pretrial notice

on good cause shown, of the

general nature of any such

evidence it intends to

introduce at trial.
6

defense counsel object,4 and that objection

was not at all specific. His failure to

object, of course, did not relieve the

prosecutor of his duty to comply with the

Federal Rules of Evidence and, even more

importantly, rules of fundamental fairness.

There was a serious breakdown here. 

As for the evidence of Moore’s

“Other Crimes, Wrongs, or Acts,” i.e., the

Rule 404(b) evidence, which came in

principally through Belinda and Brittany

Newcomer, let us be quite clear. We are

not reviewing the District Court’s decision

to admit this evidence, because the

evidence came in bereft of any motion to

admit; bereft of any prior notification of

the general nature of the Rule 404(b)

evidence the government intended to

introduce; bereft of any objection by

defense counsel; and bereft of any exercise

of control on the part of the District Court.

Indeed, Rule 404(b) never once came up

during the course of trial until the District

Court sua sponte (because neither defense

counsel nor the government had submitted

a proposed jury instruction as to 404(b)),

asked during the charge conference

whether there was any need to instruct the

jury regarding Moore’s “prior crimes or

bad acts.” Counsel both agreed that that

would be appropriate. 

When the instruction was given to

the jury, however, the District Court stated

that the testimony that Moore “committed

some acts other than the ones charged in

the indictment” was permitted “only as

background to the events at issue here,”

and could be considered only for that

purpose and not as evidence that he

committed the crimes with which he was

charged. Parenthetically, we are unaware

of any case under Rule 404(b) that would

permit the use of the type of evidence seen

here as “background,” and the government

has proffered none. At the conclusion of

the charge, the prosecutor asked the

District Court to further instruct the jury,

as the government puts it here, that “many

of [Moore’s] statements and actions

provided proof of motive for the arson.”

Appellee’s Br. at 11-12. Defense counsel,

albeit “reluctantly,” agreed, and the

District Court so instructed the jury. 

Putting aside the virtual silence as

to Rule 404(b) during the course of trial, in

order to be admissible under 404(b), “(1)

the evidence must have a proper purpose

under Rule 404(b); (2) it must be relevant

under Rule 402; (3) its probative value

must outweigh its potential for unfair

prejudicial effect under Rule 403; and (4)

the Court must charge the jury to consider

the evidence only for the limited purpose

for which it is admitted.” United States v.

Vega, 285 F.3d 256, 261 (3d Cir. 2002)

(citing, among others, Huddleston v.

United States, 485 U.S. 681, 691-92

(1988)). The evidence here, at least that

 

4The sole objection, difficult as it may

be to believe, was during Brittany’s redirect, to wit: “This is far beyond cross

examination, and it’s beyond the scope of

this trial.” 30a.
7

evidence elicited from Belinda,5 fails each

and every one of these requirements.

Rather, what is crystal clear is that the

evidence came in for one reason and one

reason only: to demonstrate Moore’s

propensity to act in a particular manner,

i.e., to be a very violent man, whose

violence made the arson and the gun

possession more likely. Admitting

evidence of other bad acts for this purpose

is, of course, prohibited. See, e.g., Ansell

v. Green Acres Contr. Co, 347 F.3d 515,

520 (3d Cir. 2003) (“Rule 404(b) . . .

prohibits the admission of other acts

evidence for the purpose of showing that

an individual has a propensity or

disposition to act in a particular manner.”).

Were there any doubt that admitting

evidence of the numerous other bad acts

alleged to have been committed by Moore

would alone require reversal, the

compounding effect of the prosecutor’s

inflammatory closing argument forecloses

any argument that reversal is not

warranted. Thus, on the eve of the one

year anniversary of the September 11th

terrorist attacks, the prosecutor called

Moore a terrorist. No, said the prosecutor,

Moore was not one of those terrorists, but

“there are very different kinds of terrorists,

and I think this defendant is one of them.”

Why? Because “he inflicted terror upon

Belinda Newcomer and her family, upon

Brittany Newcomer and upon Belinda’s

son Brandon Newcomer. . . . [H]e was

forcing kids to do drug transactions for

him. What kind of person does that?” The

prosecutor marshaled the most damning of

the 404(b) evidence and emphasized it to

the jury. Why should the jury convict?

Because, he explained, of what Moore did

to the Newcomers. He is, in a nutshell, a

bad man who should be stopped at all

costs. 

Moore was not, of course, on trial

for anything he did to the Newcomers.

But yet again, there was no objection from

defense counsel, and the District Court did

not intervene. Indeed, the Court, in the

course of denying Moore’s motion for a

new trial based on the prosecutorial

misconduct inherent in the closing

argument, remarked: 

[T]he government produced

ample evidence which, if

believed by the jury, would

support [the prosecutor’s]

argument that Defendant

used terror to coerce [and

the] characterization of

Defendant as one who used

terror to coerce was within

accepta ble bounds of

advocacy for conclusions

the jury could adopt from

the evidence presented. 

 

5Given the prejudicial nature of the

testimony elicited from Belinda on direct

examination, we do not pause to also

discuss the challenged portion of

Brittany’s testimony nor to determine

whether defense counsel opened the door

to the purported rehabilitation of Brittany

that followed. 
8

But the evidence that the Court found

“accepta b le” was p r e judici a l ,

administering the death blow to the closing

argument, which tracked that evidence. 

We have reversed convictions

where “[t]he object, or at least effect, of

this disproportionate emphasis by the

prosecution . . . was to portray [the

defendant] as . . . violence-prone . . . [and]

a danger to society and who needed to be

removed for the protection of the public.”

United States v. Himelwright, 42 F.3d 777,

786 (3d Cir. 1994). In Himelwright,

although operating under an abuse of

discretion standard of review, we reversed

a conviction due to concerns that the

government’s emphasis on 404(b)

evidence in its closing argument tainted

the trial in two regards: “First, it had the

potential for frightening the jury into

ignoring evidence that otherwise might

have raised a reasonable doubt . . . .

Second, if the jury was persuaded that [the

defendant] was violence-prone by

character, it might have inferred that he

intended violence in this particular

instance. That inference is precisely what

Rule 404(b) prohibits.” Himelwright, 42

F.3d at 786 n.8. See also United States v.

Morley, 199 F.3d 129, 137-38 (3d Cir.

1999) (“This frontal assault upon the

defendant’s character is simply not

appropriate under our system of laws, and

the trial court abused its discretion in

admitting it.”). Plain error was committed

here. 

First, there can be no doubt that

error was committed. The Federal Rules

of Evidence are clear and unambiguous on

this matter: irrelevant and prejudicial

evidence is inadmissible. The evidence at

issue here–Moore’s alleged violence, drug

use, and general criminal proclivity–was

highly prejudicial and wholly irrelevant to

the arson and gun possession charges he

faced. Second, the error was plain,

stigmatizing Moore for behav ior

unconnected to those charges. Finally, we

are certain that the error affected Moore’s

substantial rights. We cannot know, given

the evidence that came in, whether Moore

was convicted because the jury believed

him to be an arsonist and the illegal

possessor of a gun, or because it thought

him to be a violent and dangerous man, a

“terrorist” of sorts. We are inclined to

believe the latter. Such uncertainty in the

face of plain error “seriously affect[s] the

fairness, integrity or public reputation of

judicial proceedings.” United States v.

Atkinson, 297 U.S. 157, 160 (1936). See

generally United States v. Olano, 507 U.S.

725, 734-36 (1993) (discussing plain

error).

III. Conclusion

Whether we apply the constitutional

harmless error doctrine that requires a

showing by the government that the error

was harmless beyond a reasonable doubt

or the non-constitutional harmless error

doctrine that requires a showing that it is

highly probable the error did not contribute

to the judgment, see Molina-Guevara, 96

F.3d at 703, we conclude that singly or in

combination, the admission of the Rule

404(b) evidence and the prosecutor’s
9

closing argument require that the judgment

and sentence be reversed for plain error,

and the case remanded to the District

Court with directions to grant Moore a

new trial. 

RENDELL, Circuit Judge, Concurring.

I agree with the view that plain

error occurred here by virtue of the

admission of evidence that villainized

Moore based on prior bad conduct that was

totally unrelated to the offenses charged.

I write to decry situations in which the

deficient performances of both the

prosecutor and defense counsel lead to a

predicament like the one faced by the trial

judge here, namely, when such evidence is

improperly presented by the prosecution,

and when defense counsel improperly fails

to object. While I agree that the trial judge

should have taken action here based on the

exceptionally egregious nature of the

violations of Rule 404(b), nonetheless, in

typical cases trial judges instinctively, and

usually quite properly, let the adversary

process unfold. It is understandable that

judges are inclined to leave evidentiary

issues to the attorneys to challenge or not,

as they see fit, because ours is essentially

an adversary system, and judicial

interference can have tactical implications.

The instant situation, however,

differs in degree from a normal case. The

sheer heft of the truly damaging and

irrelevant conduct, catalogued in the

majority opinion, quite probably diverted

the jury’s attention from the relevant issues

of proof. There was not just one error;

there were strings of testimony focused on

inadmissible and irrelevant prior acts. And

this testimony was not overshadowed by

overwhelming other evidence of Moore’s

guilt; in fact, the other substantive

evidence related to the crimes that were

relevant at trial was relatively thin,

consisting primarily of Belinda’s

testimony and the identification of a red

gas can. Accordingly, the trial judge’s

failure to act amounts to plain error in

large measure due to the predominance of

the problematic evidence that was

presented to the jury.

While a trial judge should not let

this happen, it is far easier for us to say so

from our vantage point, with the twentytwenty hindsight that we enjoy on appeal,

than it is for the judge to determine midtrial at what point enough is enough. It

would be a far better thing for counsel –

prosecution and defense alike – not to put

judges into this predicament in the first

instance, by adhering and policing

adherence to the Rules of Evidence. Here,

counsel utterly and inexplicably failed to

do so.